Category Archives: Elder Law

Elder Law. Advanced directives. Power of attorney. Living will. Health care power of attorney. HIPPA. DNR. Long Term Care Insurance. Medicaid. Medicaid Penalty Period. Medallion Signature. Social Security Payee Representative.

Who decides whether to terminate end of life care?

featimg_2_11The answer may seem obvious.  You, or your designated agent make this decision.  You have prepared a living will and left instructions for your agent to follow or, if you are still able to speak for yourself, you tell the doctors what you want.

In Texas, this is not true.  Because of the Texas Advance Directives Act, a hospital ethics panel – not you or your family – decide whether to end care!

Last October, Evelyn Kelly learned this the hard way.  Her son, David Chris Dunn, a 46 year old former county sheriff had entered Houston Methodist Hospital, transferred from Bayshore Medical Center in Pasadena.  He had a mass on his pancreas and was in renal failure.

He’d been intubated for a month and the doctors had kept him sedated so he wouldn’t disturb the tube in his throat.  Dunn couldn’t verbally respond to questions but he followed his mother’s movements with his eyes and he could nod in response to his mother’s questions.

One day, the chairman of the hospital’s Bioethics Committee told Ms. Kelly that the doctors had met and decided it was time to end David’s medical care.  The hospital ethics committee was going to meet in 48 hours to make its final decision.  Ms. Kelly had made it clear that, as a born-again Christian, she wasn’t going to take her son off of life support.

“From Kelly’s standpoint, every second her son lived was a reason for hope, but for the doctors, it had meant weeks of treating a man who wasn’t showing any signs of improvement beyond simply having a pulse.”

Chris Dunn died in December 2015.

“In Texas, it doesn’t matter what instructions you’ve previously given or what your relatives say:  If you’re in critical condition, you’re dependent on machines to survive and hospital officials decide it’s time to pull the plug, you will die.  And it’s completely legal.”

It’s rare for a patient’s case to end up before a hospital ethics committee only because most patients die before the process is completed.    However, when it does, it’s very difficult to stop the process based on a law signed by George Bush in 1999.

There are several other cases that have been reported.  Here’s one that happened in 2005 when Zee Klein’s 91 year old mother, Edith Pereira, was taken to the Texas Medical Center with a urinary tract infection.  She had brittle diabetes and had gone blind from the disease but her heart and lungs were in good shape, she could still feed herself and she was fairly lucid most of the time.

The family was focused on getting the infection under control so didn’t argue when a doctor put Pereira on a dose of morphine that would keep her unconscious, and thus unable to eat and regulate her blood sugar.  When the medical team told Klein they wouldn’t install a feeding tube for her mother, Klein had a problem.  One of the doctors told her “ We feel that your mother’s spirit is telling us she wants to die!”

Klein was dumbfounded.  She managed to have her mother transferred to another hospital where she lived for about six months before dying.

Be sure you know what’s legal in your state and be prepared.  For more information about advance healthcare directives and living wills, go to www.diesmart.com.

 

5 Legal Documents every caregiver needs

biyExXGATIf you think a relative may be at risk of dementia or some other disease that will affect their reasoning ability, there are 5 legal documents you should get that relative to complete while still able to do so. Otherwise, when you become that person’s caregiver, you will need to go to court to apply for guardianship and the right to make decisions on his behalf. That court application will typically take 6 – weeks and cost you thousands of dollars. If another family member contests your application, it will only take more time and cost even more money. Don’t wait too long or it might be too late. Your relative may no longer be competent to make these critical decisions.

The 5 advance directive documents are:

  1. A durable power of attorney – It gives you the right to make financial decisions for that relative. Those can be things like paying bills, selling property and making investments.
  2. A healthcare proxy – This gives you the right to make medical decisions on the incapacitated relative’s behalf. This can include things like what course of treatment to follow, which physician to choose and where treatment should be performed.
  3. A living will – This states the medical treatment the person wants, or doesn’t want, so the decisions have been made before you take over. They include things like whether medical personnel should try resuscitation if the person’s heart stops, whether heroic measures should be taken, whether pain killers should be administered, etc.
  4. A current will – If the person has an old will, it should be reviewed to make sure that it reflects his or her present wishes and circumstances. Perhaps the will was written several years ago and needs to be changed. The will should state what should happen to all assets after he or she is deceased.
  5. You might want to also consider a living trust.   A living trust can make it easier for your fiduciaries to manage those assets while following the instructions of an incapacitated or deceased person.

State laws vary so you might want to consult an attorney when preparing these documents. And for more information about advance directives and wills versus trusts, go to www.diesmart.com.

 

Who has your healthcare power of attorney?

A healthcare power of attorney is the document where you name the person who will make medical decisions on your behalf when you are unable to do so.  Equally as important as having this document is telling your family who it is and why.

A legal battle started a short while ago disputing whether Sumner Redstone,  the 92 year old titular leader of both CBS and Viacom (who earned a combined $24 million in compensation from the companies in fiscal 2014), still has the mental capacity to make informed decisions.

The suit was brought by Manuela Herzer, a former companion to Mr. Redstone.  The two dated between 1999 and 2001 and, according to her, still maintain a close relationship.  She was legally designated as the person to make Mr. Redstone’s medical decisions.  However, in October, new documents were executed that stripped her of this power and named, instead, Phillippe Dauman, Redstone’s longtime lawyer and CEO of Viacom.  In court filings, Ms. Herzer claims that Mr. Redstone does not have adequate mental capacity to replace her and has asked the court to make him undergo a medical evaluation to prove her point.

Most of us don’t earn $24 million dollars in one year and don’t have the kind of net worth of Sumner Redstone.  However, the point is still as valid for you and me as it is for him.  If you make changes in your healthcare power of attorney or other legal documents that relate to who can make decisions on your behalf, it’s a good idea to tell those involved so they will be aware of what you’ve done and why.

For more information about a healthcare power of attorney and other estate planning documents, go to www.diesmart.com.

Who makes decisions if your divorce is not finalized?

lamar

I came across a blog the other day that made a very important point.  If you are in the process of divorcing and have a medical emergency, who will make decisions on your behalf?

When Lamar Odom was recently found unconscious in a Nevada brothel and was rushed to the hospital, who did the officials call?  They called Khloe Kardashian.  Although they are in the process of finalizing their divorce, in the eyes of the law, they are still married and unless an advance directive for healthcare states otherwise, is the person who can make medical decisions on his behalf.

Unless you just don’t care, when you are getting a divorce, it’s critical that you update your advance directive to name someone other than your soon to be spouse to decide what the doctors should and shouldn’t do if you have an accident or a sudden health emergency.

To find out more about advance care directives and planning for the end of your life, go to www.diesmart.com.

California passes right-to-die law

131754-gov-jerry-brown_1This past week, Governor Jerry Brown of California signed a bill into law that makes it legal for a dying person to end his or her life.  When Brown signed the bill, he also released a letter to the state assembly explaining why he agreed to sign it.

He said, “The crux of the matter is whether the State of California should continue to make it a crime for a dying person to end his life, no matter how great his pain or suffering.  In the end, I was left to reflect on what I would want in the face of my own death.”

“I do not know what I would do if I were dying in prolonged and excruciating pain,” Brown wrote. “I am certain, however, that it would be a comfort to be able to consider the options afforded by this bill. And I wouldn’t deny that right to others.”

The law requires that patients are able to administer the life-ending drug themselves.  Also, their decision must be submitted in written form, signed by two witnesses and approved by two doctors.

California becomes the fifth state to have a right-to-die law.  New Mexico, Oregon, Vermont and Washington are the others.

For more information about end-of-life decisions, go to www.diesmart.com.